Shri Sonu Upadhayay vs The State (Nct) Of Delhi, Etc.
2002 Latest Caselaw 538 Del

JUDGMENT

Khan, J.

1. Petitioner stands externed for two years by order dated 6.8.01 passed by DCP (NW). His appeal against order has also failed. He has now filed this petition challenging the two orders.

2. Petitioner's case, as set out in his petition, is that he was implicated in false cases and that he had earned acquittal in all cases except two and that he had not been involved in any criminal case for the last more than three years and, therefore, there was justification for his externment from Delhi.

3. L/C for the petitioner pressed in service only two ground before us viz (i) that delay of three years in passing the externment order would vitiate it and

(ii) the order was liable to be quashed also as the petitioner was not found to be involved in any criminal activity for the last about four years. No other ground was canvassed before us.

4. Respondents have justified the order in their reply. Their stand is that petitioner was involved in 16 cases of robbery, obstructing government servants in discharging their duties, attempt to murder, theft, dacoity and robbery, criminal intimidation, grievous hurt, etc. He was externed on the basis of sufficient material which proved his criminal activity and propensity. He was consequently found to be a criminal of desperate nature and his presence was considered hazardous to the society and witnesses had also refused to come forward to depose against him fear of safety of their person and property.

5. Section 47 od DPA confers extraordinary power on the police commissioner to require a person to remove himself from any part of Delhi or outside it to meet an extraordinary situation which otherwise cannot be dealt with by a normal legal process. It provides various grounds on which an order can be passed. The Commissioner is empowered to pass the order on any one of these and on formation of opinion that witnesses were not willing to come forward to depose against such person for fear of safety of their person and property.

6. It is no more res integra that Commissioner was to satisfy the requirements of Section 47 and other relevant provisions of DPA including Section 50 providing various safeguards to the person processed to be externed. Though his satisfaction was subjective he was required to pass the order on the basis of relevant material and not on mere apprehension. It is a different matter that this court would not examine the sufficiency or insufficiency of the material before him, but that would not absolve him from passing the order in conformity with the statutory requirements and if he failed, his order would be vitiated and suffer invalidation.

7. In the present case, commissioner has passed the impugned order of externment on the ground that petitioner was a criminal of desperate nature and that his presence was hazardous to the society. He has also found that witnesses were not coming forward to depose against him for fear of safety of their person and property, thus satisfying both requirements in the process.

8. Therefore, all that remained to be seen was whether a delay of three years or so in passing an externment order from the date of notice under Section 50 would invalidate the order or whether petitioner's non-involvement during this period would have a similar consequence.

9. Delay in passing the externment order is not fatal as it could be attributed to a number of circumstances. Moreover, there was no statutory time limitation prescribed for passing of an externment order and so long as the allegations contained in the notice under Section 50 had not become stale and had not lost the nexus with the proposed externment order, any delay in passing it would not vitiate or invalidate it. Support for this is drawn from a DB judgment of Gujarat High Court in Laxmansinh Vir Bahadursingh Gurkha v. State of Gujarat and Anr. 1990 Crl. L.J. 279 holding thus:-

"Apart from the fact that notice is served and the case processed through various stages containing the continuity of proceedings till the date of passing the externment order clearly establishes that the concerned authority had not given up the proceedings of externment. It may be that due to various reasons some delay might because in passing the final order, but till it is established that allegations are stale or no live-link exists between the allegations made in the notice and the final order, or that the allegations are illusory or that there is no real nexus between the grounds and the impugned order, the order can't be set aside on the ground of delay, when no statutory time bound programme is fixed under the provisions of the Act. The court should consider the explanation tendered by the authority concerned and if a reasonable explanation is tendered, the order can't be held to be vitiated on the ground of delay."

10. We have scanned through the record and in the present case, the ball is in petitioner's court and much of the delay is attributable to him. Notice against him was issued on 22.7.1998 to which he responded on 12.2.1999. He then filed his reply on 25.2.1999 but again failed to appear on same future dates resulting in dragging of the externment proceedings. Therefore, it would lie in his mouth to lay blame at the door of Commissioner for any delay in passing the order. It could not, therefore, be said or held that R-2 had committed any inordinate delay in passing the order or that the allegations made in the notice against petitioner had become so stale or had lost the nexus to vitiati the order or to render it invalid.

11. On the second issue, less said the better. Even if it was assumed that petitioner had not committed any criminal activity during the period when proceedings were pending against him, it would not constitute a ground or circumstance for recalling or quashing the externment order. Nor could his acquittal in 6 out of 11 cases. It is also not the case that R-2's externment order suffered from any non-application of mind or from lack of any basis or material or had contravened any statutory requirement.

12. Even as the order could not be faulted, it remained to be seen whether it ought to run its full life. It is possible that petitioner might have mend his fences and changed the track after losing his home and hearth. It is also likely that other circumstances and conditions might have changed meanwhile putting an end to his criminal propensity. No harm or prejudice would be caused to Respondents if he was afforded an opportunity to seek review of his case. He is, therefore, allowed to make a representation to DCP(NW) who shall examine and consider it and pass appropriate orders under law. Petition is disposed of accordingly.